Court Restudies Issue of Government-Sponsored Christmas Displays

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The Supreme Court, hearing arguments in a case from Pittsburgh, returned today to the troublesome question of what type of Christmas holiday display the Constitution permits government to sponsor.

Two Supreme Court cases in the last five years have failed to resolve the question definitively. In the arguments today, which concerned a nativity scene inside the Allegheny County Courthouse and an 18-foot-high Hanukkah menorah paired with a 45-foot Christmas tree outside Pittsburgh's City-County Building, the Justices appeared as closely divided as ever.

The United States Court of Appeals for the Third Circuit declared in 1988 that both the creche and the menorah were barred by the First Amendment's prohibition against an official establishment of religion. The group of Pittsburgh residents who sued to bar the displays did not allege that the Christmas tree itself was an impermissible religious symbol. Issue of Secular Symbols

The appeals court issued its ruling despite the Supreme Court's decision, in a 1984 case from Pawtucket, R.I., upholding the city's display of a creche that was surrounded by essentially secular symbols like candy canes and Santa's reindeer. The Third Circuit found a crucial distinction in the fact that the Pittsburgh creche and menorah were not similarly surrounded, but stood as purely religious displays.

The major factor in the 1984 ruling, Mr. Buscemi said, was not that the Pawtucket creche was surrounded by secular symbols but that it was displayed ''in the context of the holiday season.'' He noted that Christmas is widely observed as a secular holiday on which, for example, public employees get a day off with pay.

Justice Sandra Day O'Connor asked Mr. Buscemi whether ''the context of the Christmas season would justify holding a religious service, such as a Catholic mass'' in a public building.

While such a service ''probably tests the limit of the Court's opinion in Lynch,'' Mr. Buscemi said, it would ''probably be appropriate'' as long as no one was compelled to be present.

The views of Justice O'Connor, who joined the 5-to-4 majority in the Lynch case with some reluctance, are crucial to the outcome of the Pittsburgh case. She did not appear to take much comfort from Mr. Buscemi's argument. Inclusion of Menorah

The inclusion of the menorah in the display was a novel element that the Court had not considered in its earlier rulings. It appeared to confuse rather than clarify the issues.

In response to Mr. Buscemi's argument that the city could properly recognize ''the historical origins of the Christmas holiday,'' Justice Antonin Scalia observed, ''That explains the creche but not the menorah.''

''The menorah is part and parcel of the holiday season as celebrated by the residents of Pittsburgh,'' Mr. Buscemi replied.

Organizations like the American Jewish Congress and the American Jewish Committee oppose the display, which was defended in the argument today by Nathan Lewin, a Washington lawyer representing Chabad, the group that owns the Pittsburgh menorah. Chabad, an organization affiliated with the Lubavitch branch of Hassidic Judaism, has sought for the last 10 years to insure that menorahs are part of public displays in the Christmas season. 'Respect for Minority Faiths'

Mr. Lewin said, ''The irony of this case is that an apparently successful effort on the part of the city to demonstrate neutrality with regard to all religion is being attacked as violating the Establishment Clause.''

He said the display ''demonstrates to the citizens of Pittsburgh the city's respect for minority faiths.''

''Is the city obliged to satisfy the requests of a third or a fourth or a fifth religion?'' Justice John Paul Stevens asked. Mr. Lewin said it was because it could not discriminate among religions. When Justice Stevens asked whether the city would have to grant the request of a religion with only three or four adherents in Pittsburgh, Mr. Lewin said a ''rule of reason'' should apply.

Arguing for the American Civil Liberties Union's Pittsburgh chapter, which brought the lawsuit, Roslyn M. Litman said the city had done more than simply accommodate religious interests, which might be permissible.

''This is not accommodation, this is promotion,'' she said. ''This is not neutrality, this is favoritism.''

''How can you possibly be endorsing either Christianity or Judaism when you have symbols of both?'' Justice Scalia asked.

Ms. Litman replied, ''You are endorsing Judeo-Christian symbols with an appalling lack of consideration for those who don't adhere to the Judeo-Christian tradition.''

The Court is expected to decide the case, County of Allegheny v. A.C.L.U., by early summer.

A version of this article appears in print on February 23, 1989, on Page B00007 of the National edition with the headline: Court Restudies Issue of Government-Sponsored Christmas Displays. Order Reprints|Today's Paper|Subscribe